Refugee Protection Division
Assessment of Credibility in Claims
for Refugee Protection
Legal Services
January 31, 2004
Implementation of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) has been deferred, and therefore the provisions of the Immigration and Refugee Protection Act referring to the RAD are not operative.
TABLE OF CONTENTS
- MEMORANDUM
- FOREWORD
- 1. GENERAL PRINCIPLES AND OBSERVATIONS
- 1.1. Credible or Trustworthy Evidence
- 1.2. Consistency on Findings of Credibility
- 1.3. Benefit of the Doubt
- 1.4. Notice to the Claimant
- 1.5. Allowing Testimony, Witnesses and Examination of Documents
- 1.6. Interlocutory Decisions on Credibility
- 1.7. Proper Evidentiary Basis for Findings on Credibility
- 1.8. Considerations on Judicial Review and Appeal
- 1.9. Assessing a Witness's Testimony
- 2. SPECIFIC CONCERNS
- 2.1. Considering All of the Evidence
- 2.1.1. Considering the Evidence in its Entirety
- 2.1.2. Assessing the Balance of the Evidence
Found to be Credible
- 2.1.3. General Finding of Lack of Credibility
- 2.1.4. Lack of Subjective Fear
- 2.2. Making Clear Findings on Credibility and Providing Adequate
Reasons
- 2.2.1. Clear Findings on Credibility
- 2.2.2. Adequacy of Reasons
- 2.3. Basing a Decision on Significant and Relevant Evidence and
Aspects of the Claim
- 2.3.1. Relevancy Considerations
- 2.3.2. Contradictions, Inconsistencies
and Omissions
- 2.3.3. PIFs
and Statements Made to Immigration Officials
- 2.3.4. Materiality
- 2.3.5. Impausibilities
- 2.3.6. Incoherent and Vague
Testimony and Lack of Knowledge or Detail
- 2.3.7. Demeanour
- 2.3.8. Criminal and Fraudulent
Activities in Canada
- 2.3.9. Delay in
Claiming Refugee Status and Other Related Factors
- 2.4. Relying on Trustworthy Evidence to Make Adverse Findings
of Credibility
- 2.4.1. Trustworthy Evidence
on Which to Base Findings
- 2.4.2. Presumption of Truthfulness
- 2.4.3. Corroborative Evidence
- 2.4.4. Silence of the Documentary
Evidence
- 2.4.5. Lack of Identity and
Other Personal Document
- 2.4.5.1. Legislation
- 2.4.5.2. Commentary
to RPD
Rule 7
- 2.4.5.3. Background
and Jurisprudence
- 2.4.6. Self-Serving Evidence
- 2.4.7. Preferring Documentary
Evidence to the Claimant's Testimony
- 2.4.8. Assessing Documents
- 2.4.9. Medical Reports
- 2.5. Allowing the Claimant to Clarify Contradictions or Inconsistencies
in the Testimony
- 2.5.1. General Principle
- 2.5.2. Confronting the Claimant
with Contradictions or Inconsistencies Internal to the Claimant's
Testimony
- 2.5.3. Confronting the Claimant
Where the Testimony is Vague
- 2.5.4. Confronting the Claimant
with Documentary Evidence
- 2.5.5. Confronting the Claimant
Where There Are Implausibilities
- 2.6. Taking the Characteristics of the Process Into Account
- 2.6.1. Hearing Procedures
- 2.6.2. Special Circumstances
of the Claimant
- 2.6.3. Assessing the Evidence
- 2.6.4. Questioning by the
Board Member or Refugee Protection Officer
- 2.6.5. The Filter of an Interpreter
- 3. A FINDING OF "NO CREDIBLE BASIS"
- 3.1. Overview
- 3.2. Legislation
- 3.3. Notice to the Claimant Not Required
- 3.4. Application of the Provision
- 3.5. Interrelation between "Credibility" and "Credible
Evidence"
- 3.6. Consequences of a Finding
of "No Credible Basis"
APPENDIX: TABLE OF CASES CITED
MEMORANDUM
Date: 2004-09-09
To: Chairperson; RPD Deputy Chairperson; RPD ADCs; PDB; all RPD Members and RPOs
From: Krista Daley
General Counsel and Director, Legal
Subject: Paper on Assessment of Credibility in Claims for Refugee Protection
Attached please find the updated version of the Legal Services paper Assessment of Credibility in Claims for Refugee Protection, dated January 31, 2004. The electronic version will be available shortly in Intranet and in the IRB’s website.
This update replaces the previous version of this paper in its entirety.
I trust that you will continue to find this paper useful. If you have any comments about the format or the content, please forward them to Richard Tyndorf, Legal Adviser, who is responsible for updating this paper.
original signed by
Krista Daley
FOREWORD
The process of determining whether a claimant is a Convention refugee or a "person in need of protection" under the Immigration and Refugee Protection Act (IRPA)1 is one that requires members of the Refugee Protection Division (RPD) to decide whether they believe the claimant's evidence and how much weight to give to that evidence. In determining this, members must assess the credibility of the claimant, other witnesses and the documentary evidence.
It is important to bear in mind, as the Federal Court has pointed out, that a negative credibility determination which may be determinative of a Convention refugee claim under section 96 of IRPA is not necessarily determinative of a claim as a person in need of protection under section 97. Whether the Board has properly considered both the section 96 and section 97 claims is determined in the circumstances of each individual case, bearing in mind the different elements required to establish each claim.2
Under the former Immigration Act,3 the determination of whether a person is a Convention refugee was made by members of the Convention Refugee Determination Division (CRDD). The references to the CRDD in previous versions of this paper have been changed to the RPD or the Board, as applicable. The Refugee Hearing Officer (RHO) or Refugee Claim Officer (RCO) is now known as the Refugee Protection Officer (RPO) under IRPA. All references to "the Court" mean the Federal Court of Canada, unless stated otherwise. The paper includes the relevant jurisprudence up to January 31, 2004.
1. GENERAL PRINCIPLES AND OBSERVATIONS
1.1. Credible or Trustworthy Evidence4
Assessment of credibility is guided by legislative provisions and principles found in the jurisprudence. IRPA states in section 170:
170. The Refugee Protection Division, in any proceeding before it,
...
(g) is not bound by any legal or technical rules of evidence;
(h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.
A similar provision was found in the former Immigration Act:
68.(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case.
Thus the RPD cannot reject evidence simply because it is hearsay: reasons must be provided for considering such evidence to be unreliable.5
Where the Board finds a lack of credibility based on inferences, there must be a basis in the evidence to support the inferences. It is not open to Board members to base their decision on assumptions and speculations for which there is no real evidentiary basis.6
The Federal Court of Appeal stated, in Maldonado,7 that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness.
An important indicator of credibility is the consistency with which a witness has told a particular story.8 The RPD may also take into account matters such as the plausibility of the evidence and the claimant's demeanour.
As for the standard of proof, the Federal Court of Appeal pointed out in Orelien9 that
one cannot be satisfied that the evidence is credible or trustworthy, unless satisfied that it is probably so, not just possibly so.
Therefore, findings of fact, as well as the determination as to whether the claimant's evidence is credible, are made on a balance of probabilities.
1.2. Consistency on Findings of Credibility
The credibility and probative value of the evidence has to be evaluated in the light of what is generally known about conditions and the laws in the claimant's country of origin,10
as well as the experiences of similarly situated persons in that country.11
The Federal Court has cautioned, however, that, as between different cases, "[t]here can be no consistency on findings of credibility." Credibility cannot be prejudged and is an issue to be determined by the Board members in each case based on the circumstances of the individual claimant and the evidence.12
Credibility findings have to be explained and must be supported by the evidence. (This topic is discussed in 2.2. Making Clear Findings on Credibility and Providing Adequate Reasons.)
1.3. Benefit of the Doubt
The Handbook on Procedures and Criteria for Determining Refugee Status13 provides the following guidance:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. ... Even such independent research may not, however, always be successful and there may be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
This principle was discussed in the Supreme Court of Canada decision of Chan.14 The majority found that, where the claimant's allegations run contrary to the available evidence and generally known facts, it is not appropriate to apply the benefit of the doubt in order to establish the claim. In reaching this conclusion, the majority stated:
My colleague, La Forest J. argues that no conclusions can be drawn from individual items of evidence and that on each item the [claimant] should be given the benefit of the doubt, often by considering hypotheticals which could support the...claim. This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented. This approach is also fundamentally incompatible with the concept of "benefit of the doubt" as it is expounded in the UNHCR Handbook:
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. [emphasis in the original]
The Supreme Court went on to discuss the evidence, contrasting the appellant's testimony with the documentary evidence:
Since the... claim that he would be physically coerced into sterilization runs contrary to the available evidence and generally known facts it is not an appropriate instance in which to apply the benefit of the doubt in order to establish the [claimant's] case.15
The benefit of the doubt does not apply to situations where the Board finds a story implausible.16
1.4. Notice to the Claimant
The Federal Court has stated that credibility is always an issue in refugee hearings and that no special notice needs to be provided to the claimant.17 Some cases have held, however, that issues such as identity, delay or failure to claim elsewhere require specific notice.18 Moreover, the Board acts at its peril when it isolates some concerns and draws those to the attention of the claimant, but actually decides the case on the basis of others, which are not identified as issues.
For example, in Velauthar, the Federal Court pointed out that, if the decision-makers have concerns about the claimant's credibility but direct the claimant's counsel to address only other areas of the claim in submissions, it would be a breach of natural justice to base a negative determination on an adverse finding of credibility, as the claimant would be denied an opportunity to know and address the case against him or her.19 Similarly, there is a denial of natural justice when a panel leads the claimant to believe that the issue of identity is resolved and then refuses the claim based primarily on that issue.20
It is permissible for the Board to identify credibility as an issue during the course of the hearing, should an issue concerning credibility arise, even where it has not been identified as an issue previously. The RPD must do so in clear terms and provide the claimant with an opportunity to address the issue.21
1.5. Allowing Testimony, Witnesses and Examination of Documents
A claimant must be provided a reasonable opportunity to present evidence22. When the Board rejects a claim because it doubts that certain pivotal events occurred or that they were connected to the activities on which the claim is based, some Federal CourtTrial Division cases suggest that the claimant should be given an opportunity to testify about those events.23
The Board errs when it does not allow the claimant to adduce the testimony of a witness who could corroborate the very issue on which the claimant was found not to be credible.24 There is no duty on the RPD, however, to call a witness who could have supported the claim.25
The right to call further evidence is not absolute. Although it may be preferable to hear the evidence in some cases, the Board does not err when it refuses to hear a witness who could not have clarified concerns about critical aspects of the claimant's story (for example, the failure to provide certain information in the PIF or the claimant's identity) or would have testified about matters not in issue.26
The RPD should accommodate reasonable requests by the claimant to examine documents whose authenticity is impugned by Canadian officials.27
1.6. Interlocutory Decisions on Credibility
There is no obligation on the Board to signal its conclusions on the general credibility of the evidence or the plausibility of the story in advance of its final decision on the claim.28 The Federal Court has noted such a procedure is "not to be recommended nor is it acceptable."29
1.7. Proper Evidentiary Basis for Findings on Credibility
An adverse finding of credibility must have a proper foundation in the evidence. The RPD can err in this regard by ignoring evidence, by misapprehending or misconstruing evidence, or by basing its conclusions on speculation.
If a finding of fact which was material to a finding of lack of credibility was made without regard to the evidence, the RPD's decision will generally be overturned.30 Consequently, a finding of lack of credibility based on a misunderstanding or ignoring of the evidence, or for which there is no basis in the evidence to support an inference arrived at by the tribunal, will not be allowed to stand.
The Federal Court will not, however, interfere with a decision if the Board had before it evidence that, taken as a whole, would support its negative assessment of credibility, if its findings were reasonable in light of the evidence, and if reasonable inferences were drawn from that evidence.31
1.8. Considerations on Judicial Review and Appeal
Findings of credibility by the Board are given considerable deference by the reviewing court: It is the Board members who have the benefit of observing witnesses directly and are in the best position to determine credibility.32 It is not the role of the Federal Court, on judicial review, to substitute its decision for that of the Board even if it might not have reached the same conclusion.33
1.9. Assessing a Witness's Testimony
A decision-maker customarily takes into account the integrity and intelligence of a witness and the overall accuracy of the statements being made. The witness's powers of observation and capacity for remembering are important factors. An assessment is customarily made of whether the witness is honestly endeavouring to tell the truth, that is, whether the witness appears frank and sincere or biased, reticent and evasive.
Factors considered by the courts34 in assessing credibility include the witness's
- desire to be truthful
- their motives
- general integrity
- general intelligence
- relationship or friendship to other parties
- opportunity for exact observation
- capacity to observe accurately
- firmness of memory to carry in the mind the facts as observed
- ability to resist the influence, frequently unconscious, to modify recollection
- capacity to express what is clearly in the mind
- ability to reproduce in the witness-box the facts observed
- demeanour while testifying
2. SPECIFIC CONCERNS
From a review of the Federal Court jurisprudence, it is possible to identify six areas that have caused particular difficulty for Board members when assessing the credibility of claimants or other witnesses.
2.1. CONSIDERING ALL OF THE EVIDENCE
2.1.1. Considering the Evidence in its Entirety
The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.35 Thus the RPD should not selectively refer to evidence that supports its conclusions without also referring to evidence to the contrary.36 Furthermore, when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence. Evidence should, therefore, be treated in a consistent manner.37
The Federal Court has also emphasized that it is important not just to concentrate on exaggerations,38 but neither should a decision-masker disregard aspects of the evidence that are not favourable to the claimant.39 Thus the panel must do more than simply search through the evidence looking for inconsistencies or for evidence that lacks credibility, thereby "building a case" against the claimant, and ignore the other aspects of the claim.
The Board is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons, unless the contrary is shown.40 Therefore, the mere fact that the tribunal fails to refer to all of the evidence when rendering its decision does not necessarily signify that it ignored evidence, if a review of the reasons suggests that the tribunal did consider the totality of the evidence.41
Thus not every piece of evidence needs to be referred to and discussed in the reasons. However, as explained in Cepeda-Gutierrez,42 the more relevant the evidence, the more likely the Federal Court will find an error if it is omitted from the analysis:
...the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) [(1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.)]. In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
Thus, a presumption exists that the panel weighed each point of evidence, but there is still a duty, namely that of mentioning important evidence supporting the panel's decision.
Generally speaking, it is only necessary to refer explicitly to evidence that is directly relevant to the issue being addressed, and that which otherwise may appear to be in conflict with the conclusion reached.43
Where the claimant provides personal documentary evidence or medical reports, specific to and corroborative of his claim, it is not sufficient to simply make a blanket statement, without explanation, that no probative value was assigned to this evidence because of a general lack of credibility on the part of the claimant.44
Frimpong and other cases45 illustrate the related point that reasons must be given for disregarding uncontradicted statements, either expressly or implicitly. If this is not done, it will leave the decision open to attack.
2.1.2. Assessing the Balance of the Evidence Found to be Credible
Even if there are inconsistencies or exaggerations, the panel must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.46
In other words, the rejection of some of the evidence, or even all of the claimant's testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim: the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant's situation and evidence regarding persons who are similarly situated.47
The claimant's failure to testify does not allow the RPD to reject the claim without first assessing the remaining evidence.48
2.1.3. General Finding of Lack of Credibility
It is possible to make a finding that overall a claimant's testimony is not credible. The Court of Appeal stated in Sheikh:49
even without disbelieving every word [a claimant] has uttered, a...panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim... In other words, a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony.
In some cases, the claimant's contradictory testimony can cast doubt upon the totality of his oral evidence.50 But this is not always so, especially when the panel's findings of lack of credibility and implausibility are not clearly tied with the ultimate issues to be determined in the claim.51
Where a finding of a total lack of credibility cannot be made, the remaining credible or trustworthy evidence must be considered to determine whether it supports a finding of a well-founded fear of persecution.
2.1.4. Lack of Subjective Fear
Where a claimant is found to be lacking in credibility, the RPD can legitimately find that there is no subjective basis for the claim. In such cases, it is very difficult, if not impossible, to find credible evidence of a claimant's subjective fear, notwithstanding the existence of evidence of human rights violations in the claimant's country.52
In Yusuf,53 the Federal Court stated that it is difficult to see in what circumstances it could be said that a person could be right in having an objective fear of persecution and still be rejected because it is considered that fear does not actually exist in the person's conscience. However, that case was decided before the Supreme Court of Canada decision in Ward,54 which made it clear that both components of the test are required to establish fear of persecution: the claimant must subjectively fear persecution, and this fear must be well-founded in an objective sense. Thus, a lack of evidence going to the subjective element of the claim is in itself sufficient for the claim to fail.55 This appears to be so even when there is evidence that an objective basis for the fear exists.56
Despite the existence of a bipartite test, some Federal Court decisions have held that evidence of lack of subjective fear or credibility based on the claimant's behaviour does not relieve the Board from its responsibility to deal with personal documentary evidence, specific to the claimant, that corroborates the claimant's testimony.57
2.1.5. Joined and Related Claims
Where a claim has been joined to another claim, a finding of lack of credibility in respect of one claimant's evidence and testimony could have a negative impact on another claimant where the claims are linked to the same event or one is dependent on the other.58 A finding that one of the claimants is credible would generally impact on another claimant whose claim is based on the same fact situation.59 Where one of the claimants presents
his or her own allegations of persecution or the joined claims have distinctive
elements, those aspects will require separate analysis.60
In general, the Board has no obligation to refer to or follow the decisions of other panels, even when it is dealing with members of the same family.61 Where there is relevant evidence put before the panel regarding a related claim (that was heard separately) which can link the claimant to the persecution alleged,62 or which casts doubt on the claimant's credibility,63 the Board will have to consider it. However, the RPD is not bound by a decision rendered by another panel of the same Division,64 nor is it entitled to rely on another panel's overall conclusions on the previous claim, which was found not to be credible, as evidence in support of its conclusion that the present claimant's story is not credible.65
2.2. MAKING CLEAR FINDINGS ON CREDIBILITY AND PROVIDING ADEQUATE REASONS
2.2.1. Clear Findings on Credibility
The Federal Court has commented frequently that if the Board rejects a claim essentially because of a lack of credibility, clear reasons must be given. Those aspects of the testimony which appear not to be credible must be clearly identified and the reasons for such conclusions must be clearly articulated.66
The Court of Appeal stated in Addo that, where there is no clear adverse finding of credibility, a recitation in the reasons of the claimant's testimony will be deemed to be the Board's findings of the relevant facts.67
2.2.2. Adequacy of Reasons
The Board is required to make clear findings as to what evidence is believed or disbelieved,68 and should go on to assess any evidence found to be credible.69 Ambiguous statements that do not amount to an outright rejection of the claimant's evidence, but only "cast a nebulous cloud over its reliability," are not sufficient to discount the evidence.70
Absent a conclusion impeaching the credibility of the claimant as a whole, the Board cannot, by reference to a finding expressly limited to one incident or one aspect of the claimant's story, ignore other incidents or aspects of the claim.71
As noted by the Court of Appeal in Hilo, the Board should be consistent in the treatment of various aspects of the claimant's testimony. For example, the panel should not use evidence which was disbelieved as a premise (factual basis) to undermine other aspects of the claimant's testimony.72
The Federal Court has called some panel's reasons regarding credibility "regrettably sparse" or even "vague" and stated that the Board owes a duty to the claimant to give its reasons for rejecting the claim on the basis of credibility in "clear and unmistakable terms.”73 If the RPD believes only some of the claimant's story, it is obliged to say what parts it rejected and why.74 It is not enough to say that the evidence is not believed,75 since this creates an appearance of arbitrariness.
The grounds for rejecting or disbelieving evidence must be stated clearly with specific and clear reference to the evidence. This generally includes an obligation to provide examples of the basis for not accepting the claimant's testimony (such as inconsistencies, implausibilities), and to explain how and why they impacted on the claimant's credibility.76
2.3. BASING A DECISION ON SIGNIFICANT AND RELEVANT EVIDENCE AND ASPECTS OF THE CLAIM
2.3.1. Relevancy Considerations
The Federal Court has held that a finding that testimony is not credible must be based on relevant considerations77 It is possible, however, to use evidence that is not directly relevant to a ground for claiming refugee status in deciding that the claimant lacks credibility, where that evidence undermines the claimant's identity78 or reveals a pattern of fabrication that gives rise to doubts generally about the claimant's veracity.79
2.3.2. Contradictions, Inconsistencies and Omissions80
The existence of contradictions or inconsistencies in the evidence of a claimant or witness is a well-accepted basis for a finding of lack of credibility.81 As discussed later (see 2.3.4. Materiality), the discrepancies must be sufficiently serious and must concern matters that are relevant to the issues being adjudicated to warrant the adverse finding.
These considerations apply as well to omissions in the claimant's previous statements, whether made to Canadian immigration officials (at the port of entry or inland);82 in a previous examination (such as an examination under oath);83 or hearing84 on the claim; in the claimant's Personal Information Form (PIF)85 or the PIFs of family members;86 or during an interview at the Board.87 It appears, however, that little can be made of the claimant's failure to advise Canadian officials abroad of his or her fear of persecution when applying for a visa to come to Canada,88 or perhaps with respect to omission of information in the eligibility interview notes.89
The Federal Court has identified the following general factors as relevant to the assessment of inconsistencies or discrepancies:90
[23] The discrepancies relied on by the Refugee Division [CRDD] must be real [Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.)]. The Refugee Division must not display a zeal "to find instances of contradiction in the [claimant's] testimony ... it should not be over-vigilant in its microscopic examination of the evidence" [Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.)]. The alleged discrepancy or inconsistency must be rationally related to the [claimant's] credibility [Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.)]. Explanations which are not obviously implausible must be taken into account [Owusu-Ansah, supra].
[24] Moreover, another line of cases establishes the proposition that the inconsistencies found by the Refugee Division must be significant and be central to the claim [Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A.)] and must not be exaggerated [Djama, Idris Mohamed v. M.E.I. (F.C.A., no. A-738-90), Marceau, MacGuigan, Décary, June 5, 1992].
2.3.3. PIFs and Statements Made to Immigration Officials
Port of entry notes or documents prepared by Canadian immigration officials are admissible at an RPD hearing, without any further participation by the Minister at the hearing.91 They are admissible even though they may be unsigned and undated,92 and even though their author is not called or is not available to testify.93 Port of entry notes are admissible even though there is no evidence that the form in question has been established by ministerial order,94 and even though the notes are in a non-official language.95
In a number of cases, the Federal Court pointed out some of the pitfalls in using port of entry notes96 and PIFs,97 and relying unduly on contradictions or omissions as a reason for a finding of lack of credibility, as these are not always indicative of a lack of credibility. While the omission of a significant fact from a claimant's PIF can be the basis for a adverse credibility finding,98 the Board should in each case consider the nature of the contradiction or omission, as well as the timing of any amendment to the PIF (for example, a significant last-minute amendment as opposed to merely adding further detail at the hearing), and take into account any explanation offered by the claimant.99
With respect to the content and level of detail of the PIF narrative, the Federal Court stated in Basseghi:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for [a claimant] to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.100
In assessing discrepancies, the RPD should consider factors such as the claimant's psychological condition101 or young age,102 and the vulnerable circumstances of abused women.103
The similarity between the claimant's PIF and the PIFs of other claimants may be an appropriate basis for questioning the credibility of a claim.104
There is no special requirement for the RPD to notify the claimant at the hearing that changes to the PIF or omissions are of significant importance: the PIF form advises the claimant of the importance of the answers in the PIF.105
If a claimant alleges that the interpreter used to translate the PIF is responsible for its shortcomings, it is up to the claimant to decide whether to call the interpreter as a witness.106
2.3.4. Materiality
It is clear from a long line of cases that an adverse finding of credibility based on contradictions in a claimant's or witness's testimony must be based on real contradictions or discrepancies107 that are of a significant or serious nature. Minor or peripheral inconsistencies in the claimant's evidence should not lead to a finding of a general lack of credibility where documentary evidence supports the plausibility of the claimant's story.108
Inconsistency, misrepresentation or concealment should not lead to a rejection of the claim where these are not material to the claim. Where a claimant is found to be lying, and the lie is material to the claim, the panel must, nevertheless, look at all of the evidence and arrive at a conclusion based on the entire body of evidence before it.
A number of decisions of the Federal Court indicate that if the claimant's story is being rejected outright, the contradictions must relate to central elements or critical points, that is, the foundation of the claim.109 Accordingly, when the testimony appears to be consistent as a whole, the panel must point out contradictions or implausibilities that relate to central aspects of the claim to support a finding that the claimant is not credible.110
Thus it has been held that rejecting a claim based solely on the non-credibility of secondary111 or peripheral112 issues, without evaluating the credibility of the evidence concerning the substance of the claim, constitutes a reviewable error.
It has also been recognized in some cases, however, that, while the discrepancies and contradictions considered individually might have seemed insignificant, when taken together and considered in context, they may support a finding of lack of credibility.113 (See also 2.1.3. General Finding of Lack of Credibility.)
2.3.5. Implausibilities
The RPD does not necessarily have to accept a witness's testimony simply because it was not contradicted at the hearing. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.114
In this respect, the British Columbia Court of Appeal stated in Faryna v. Chorny:115
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried the conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
It is not sufficient simply to indicate that the claimant's story is "implausible" without explaining further the reasoning behind that finding.116 Adverse findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation.117 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences.118
The panel should therefore articulate why the testimony that is being rejected is clearly out of line with what could be reasonably expected in the circumstances,119 and should ensure that any such conclusion is supported by the evidence, including references to the relevant documentary evidence.120
A claimant's testimony ought not to be lightly or readily dismissed. It is not sufficient for the decision-maker merely to indicate that he or she prefers to accept what is considered to be a more reasonable explanation of the events, nor is it appropriate to go on to construct one's own hypothesis as to how events actually unfolded.121
The Federal Court has indicated that considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems.122 Actions which might appear implausible if judged by Canadian standards might be plausible when considered within the context of the claimant's social and cultural background.123
Similar concerns arise when the Board applies Canadian standards of conduct to persons fleeing persecution,124 or draws inferences about the likelihood of the claimant being perceived as a political activist based on his or her "minor" role or on his or her ability to obtain a passport, without regard to relevant country conditions.125
The Federal Court has cautioned about the perils of drawing inferences from cultural generalizations126 and relying on stereotypical profiles,127 as well as assessing ethnicity based on the panel's perception of the claimant's physical appearance (unless this is plainly apparent or acknowledged by the claimant), without regard to how the claimant would be perceived in his or her home country. The panel's "common sense" is not sufficient to ground a conclusion about ethnicity based on appearance; rather, it must be able to offer other evidence to support its conclusion.128 Gender considerations are also relevant to assessing the plausibility of a claimnat's account (see the discussion in 2.6.2. Special Circumstances of the Claimant).
The Federal Court has stressed the importance of clearly articulated reasons in cases where the non-credibility finding is based on perceived implausibilities.129 When making an assessment involving implausibility, reference must also be made to relevant evidence and explanations offered by the claimant which could potentially refute the conclusion of an adverse finding on implausibility.130
While the panel is entitled to weigh the evidence and assess its credibility, it cannot reach a conclusion that is so inconsistent with the preponderance of the relevant evidence so as to be unreasonable.131
Decisions based on findings of implausibility are vulnerable on a review by a superior court or tribunal. The Federal Court has indicated that it will not extend undue deference to the Board's assessment of plausibility, as such assessments are based on the drawing of inferences and are subject to challenge, especially when they are based on extrinsic criteria such as "rationality" or "common sense".132
On the other hand, when the inferences drawn that lead to a finding of lack of credibility are not so unreasonable as to warrant the intervention of the Court, the findings will be allowed to stand. Put another way, the Federal Court will not substitute its discretion for that of the panel if it was open to the panel to find as they did, even if the Court might have drawn different inferences or found the evidence to be plausible.133
2.3.6. Incoherent Testimony and Lack of Knowledge or Detail
A claim may be rejected as lacking in credibility if the claimant's testimony is found to be incoherent or vague,134 or lacking in sufficient knowledge or detail reasonably expected of a person in the claimant's position and from that social and cultural background.135 However, the RPD should be cautious about imposing too high a standard on the claimant's knowledge about matters such as politics, religion and the like.136
2.3.7. Demeanour
In assessing the credibility of the evidence, the RPD can evaluate the general demeanour of a witness as he or she is testifying. This involves assessing the manner in which the witness replies to questions, his or her facial expresssions, tone of voice, physical movements, general integrity and intelligence, and powers of recollection.137 However, relying on demeanour to find a claimant not credible must be approached with a great deal of caution.
The Federal Court has recognized that every judge's assessment of credibility is influenced by a witness's demeanour. The Court cautioned that, although the reasons for reaching a conclusion on this issue may be partly subjective, they must also be founded on objective considerations.138
In assessing demeanour, the decision-maker ought not to form impressions based on the physical appearance or political profile of a witness,139 but on objective considerations that flow from the witness's testimony, such as the witness's frankness and spontaneity, whether the witness is hesitant or reticent in providing information, and the witness's attitude and comportment (behaviour) before the tribunal.140
Moreover, there must be a rational connection between the claimant's demeanour and the conclusions drawn from it. Individual personality traits and cultural background should be taken into account as these could cause the witness to leave a misleading impression.141
A claimant's psychological condition arising out of traumatic past experiences may have an impact on his or her ability to testify.142 Accordingly, failure to address this factor in its reasons could be a reviewable error where the RPD has found the claimant not to be credible.
The demeanour of a witness is not an infallible guide as to whether the truth is being told, nor is it determinative of credibility. It would be a rare case where demeanour alone would be sufficiently material to the claim to undermine the entire testimony in support of a claim. Generally, demeanour is one of several indicators of a lack of credibility. In general, the courts have attempted to diminish the role of demeanour in the final assessment of credibility.143
Assessments of credibility based on demeanour are open to scrutiny on judicial review. Accordingly, clear and cogent reasons must be given for such findings.144
2.3.8. Criminal and Fraudulent Activities in Canada
In Fouladi,145 the Federal Court stated that it was permissible to take account of an offence committed in Canada that involves deceit as a factor in assessing the claimant's credibility. However, in another case, the Federal Court categorized as "questionable" a panel's drawing of a negative inference as to the existence of a subjective fear of persecution, because of the claimant's criminal behaviour in Canada.146
The Federal Court has held that the making of multiple applications for Convention refugee status under different identities was a proper basis for reaching a negative assessement of the overall credibility of a claimaint.147
2.3.9. Delay in Claiming Refugee Status and Other Related Factors
Delay in seeking and applying for refugee protection is not an automatic bar to a claim for protection. Refugee claimants are not obliged under the Convention Relating to the Status of Refugees to seek asylum in the first country which they reach after flight, or in the country nearest to their home state.148
Nonetheless, the Federal Court of Appeal has held that delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status."149 Ultimately, the Board must decide, based on the evidence before it, the significance of a delay to a particular case.150
Delay points to a lack of subjective fear of persecution,151 the reasoning being that someone who was truly fearful would claim refugee status at the first opportunity.152 The Federal Court has also held that delay could be a consideration in finding a claimant not to be credible.153
The Court of Appeal has stated that the credibility of a claimant's fear cannot be disputed solely on the basis that the claim for refugee status was late in coming.154 In Huerta, Mr. Justice Létourneau wrote:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.155
Thus, despite the bipartite test for fear of persecution which requires both an objective element and a subjective fear, some Federal Court decisions have held that evidence of lack of subjective fear or credibility based on the claimant's behaviour does not relieve the Board from its responsibility to deal with the risk associated with the claimant's profile or personal documentary evidence, specific to the claimant, that corroborates the claimant's testimony.156
Exceptionally, in cases involving long delays in making a claim or returns to the country of alleged persecution, where no satisfactory explanation is provided, the Trial Division has upheld decisions finding that the delay or return itself was incompatible with a subjective fear of persecution,157 or negated a well-founded fear of persecution.158
In a series of recent decisions, a number of Federal Court judges have taken the view that Huerta enunciated a general principle, and that, although the presence of delay does not mandate the rejection of a claim as the claimant may have a reasonable explanation for the delay, nonetheless, delay may, in the right circumstances, constitute sufficient grounds upon which to reject a claim. That decision will ultimately depend on the facts of each claim.159
Therefore, the RPD should inquire into160 and examine the circumstances giving rise to the delay in order to determine whether or not the delay can be said to be indicative of a lack of fear.161
Where the circumstances are such that a claimant does not have to seek protection when outside the country of persecution because the claimant is safe from being forced to return, not making a refugee claim at the first opportunity should not generally be held against the claimant.162
The RPD should also bear in mind the special circumstances and pressures which refugees may face in assessing delay, such as a psychological condition or the vulnerable circumstances of abused women.163
The following circumstances could be seen as negating the claimant's fear, but only if reasonable explanations are not provided by the claimant:
- Failure to flee one's country of origin at the first opportunity after the occurrence of a persecutory nature.164
- Failure to go into hiding immediately after learning that one may be in danger.165
- Failure to claim (or to await the outcome of a claim) to Convention refugee status in countries where the claimant resided or sojourned, or through which the claimant travelled before coming to Canada.166 For this factor to be relevant the country in question must be a signatory to the Convention Relating to the Status of Refugees.167
- Returning voluntarily to one's country of origin,168 obtaining or renewing a passport or travel document,169 or leaving or emigrating through lawful channels.170 Some factors to consider in assessing a return to one's country include: the purpose of the return; the manner in which the claimant effected the return; how the claimant passed the time on return (for example, whether the claimant was in hiding); whether the evidence indicates that the claimant put him- or herself at risk by returning; whether any difficulties were experienced on return; the claimant's explanation for the return; and whether the explanation is reasonable.
- Delay in making a refugee claim in Canada.171 However, a claim may be credible even though it was not made at the earliest possible opportunity. A genuine refugee may well wait until he or she is safely in the country before making a claim and cannot be expected, in every case, to claim refugee status at the port of entry.172 A claim cannot be disallowed because of the mere fact that the claimant entered or remained in Canada illegally.173
A genuine refugee may not know of the entitlement to refugee status and may have remained for some time before becoming aware of the Canadian refugee determination procedure.174 A delay may be explained by reliance on other means of securing the right to remain in Canada.175 Therefore, the fact that a claim was made only when the claimant's temporary status was expiring,176 or only after receiving the advice of a lawyer, does not preclude a genuine
claim.177
A claimant would not normally be expected to claim until such time as he or she actually begins to fear persecution.178 For sur place claims, the relevant date as of which the claimant became aware that he would allegedly face persecution on return to the country of nationality is the relevant date, and not the date of arrival in Canada.179
- The Federal Court has held that an adverse inference cannot be drawn from the fact that a claimant has not disclosed his or her fear of persecution at a visa office abroad.180
2.4. RELYING ON TRUSTWORTHY EVIDENCE TO MAKE ADVERSE FINDINGS OF CREDIBILITY
2.4.1. Trustworthy Evidence on Which to Base Findings
The Federal Court has emphasized that an adverse finding of credibility must be supported by trustworthy evidence.181 When part of the testimony raises questions, the decision-maker must have trustworthy evidence to the contrary,182 or must find this part of the testimony inconsistent or inherently suspect or improbable,183 if it is to be rejected.
In determining whether the evidence that contradicts the claimant's testimony is trustworthy, factors such as the source of the information, the objective of the person in providing it and the methods used to gather the information should be considered. In addition, the decision-maker must also determine the weight or probative value to be assigned to such contradictory evidence.184 In this regard, the decision-maker must be satisfied that the evidence relied on is probably so, not just possibly so.185
2.4.2. Presumption of Truthfulness
The Court of Appeal, in Maldonado186 and on several other occasions,187 set out the important principle that when a claimant swears that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness. Hence, as a corollary, there is no legal requirement for a claimant to corroborate sworn testimony that in uncontradicted and otherwise credible. (See 2.4.2. Corroborative Evidence.)
In Hernandez,188 the Federal Court pointed that this presumption does not extend to the inferences that the claimant draws from the facts he or she testifies to:
the presumption of truth that applies to the facts recounted by the [claimant] does not apply to the deductions made from those facts.
This proposition was elaborated in Derbas,189 where the Federal Court stated:
By accepting the [claimant's] version of the events as fact, the Board was certainly not bound to accept the interpretation he puts on those events. The Board still had to look at whether the events, viewed objectively, provided sufficient basis for a well-founded fear of persecution.
Thus, the Board is entitled to reject some or all of the inferences drawn by the claimant, especially if they are speculative in nature, even in the absence of an adverse finding of credibility.190
If a panel puts questions to the claimant which he or she could not reasonably be expected to know (for example, why the authorities acted in a particular way), the claimant should not be penalized for speculating or providing hearsay information by way of explanation.191
2.4.3. Corroborative Evidence
Unless there are valid reasons to question a claimant's credibility, it is an error for the RPD to require documentary evidence corroborating the claimant's allegations. In other words, the RPD cannot disbelieve a claimant merely because the claimant presents no documentary or other evidence to confirm his or her testimony.192 Thus, generally, a failure to offer documentation cannot be linked to the claimant's credibility where there is no evidence to contradict the claimant's allegations.193
In Kaur, the Federal Court held that if a panel dispenses with the need to call a witness to corroborate the claimant's testimony, it cannot then make an adverse finding of credibility because of a lack of corroboration of that testimony.194
2.4.4. Silence of the Documentary Evidence
The Court of Appeal stated in Adu195 that
The "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
Therefore, the fact that the documentary evidence does not confirm the claimant's testimony or refer to an event reported by the claimant may be grounds for rejecting the claimant's testimony.196
Caution should be exercised, however, especially when the documentary evidence before the panel is silent about a particular matter,197 or less than comprehensive.198 Moreover, a document containing general information may not be always sufficient to refute testimony dealing with a specific, individualized event.199
It is doubtful that an adverse inference as to credibility can be drawn on the basis of documents such as letters that do not corroborate the claimant's story. Generally, such documents cannot be relied on to contradict a claimant's story merely because they do not confirm it.200
2.4.5. Lack of Identity and Other Personal Documents
2.4.5.1. Legislation
Section 106 of IRPA incorporates a specificand mandatoryrequirement for the RPD to consider a claimant's lack of documents to establish identity in assessing a claim for refugee protection.
106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
Subsection 100(4) of IRPA provides, in part, that "the claimant must produce all documents and information as required by the rules of the Board." Rule 7 of the Refugee Protection Division Rules (RPD Rules), in turn, provides that
7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [Emphasis added.]
Thus a lack of acceptable documents without a reasonable explanation for their absence, or the failure to take reasonable steps to obtain them, is a significant factor in assessing the credibility of a claimant. Consequently, the issue of identity documents should be addressed at the hearing of the claim and, where applicable, in the reasons for decision. Failing to deal with this issue in its reasons, when it is raised by the evidence, will constitute an error of law on the part of the RPD and may result in the decision being set aside.
2.4.5.2. Commentary to RPD Rule 7
The Commentary to RPD Rule 7 contains guidance as to the practice of the RPD relating to the issue of identity documents.
Commentary
Claimant's duty to provide documents establishing identity
Section 106 of the Immigration and Refugee Protection Act imposes a duty on the claimant to provide acceptable documents establishing the claimant's identity, including documents the claimant does not possess but can reasonably obtain. In assessing the claimant's credibility, the Division must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity.
Meaning of "identity"
"Identity" most commonly refers to the name or names that a claimant uses or has used to identify himself or herself. "Identity" also includes indications of personal status such as country of nationality or former habitual residence, citizenship, race, ethnicity, linguistic background, and political, religious or social affiliation.
Additional requirements under the Act
Subsection 100(4) of the Immigration and Refugee Protection Act requires the claimant to produce all documents and information as required by the rules of the Board. Subsection 170(d) requires the Division to provide the Minister, on request, with the documents and information referred to in subsection 100(4) of the Act.
Additional requirements under the rules
The rules impose the following requirements for providing documents to the Division:
- The claimant must attach to the Personal Information Form three copies of all his or her travel and identity documents, whether or not they are genuine, and three copies of any other documents relevant to the claim (RPD Rules, subsection 6(3)). These documents include not only those that were used but also those intended to be used for travelling or supporting the claim.
- The claimant must provide to the Division without delay three copies of any additional documents obtained after the Personal Information Form was provided (RPD Rules, subsection 6(5)).
- The claimant must also comply with the disclosure requirements under rule 29 of the RPD Rules if the claimant wants to use any document at the hearing of the claim. Translations must be provided for all documents that are not in English or French (RPD Rules, subsection 28(1)).
- The claimant is to present the originals of his or her documents at the beginning of the hearing of the claim or at the interview in the expedited process held under rule 19 of the RPD Rules. The Division may require the claimant to provide the originals earlier by notice in writing (RPD Rules, rule 36).
Personal Information Form
The requirement to provide acceptable documents establishing identity and other elements of the claim is also set out in the instructions for completing the Personal Information Form. The claimant is further specifically instructed to make every effort to obtain the necessary identity documents immediately, if the claimant does not have them, and to identify other identity documents the claimant has or can obtain.
Supplementary documents
The Division may instruct the claimant to provide specific documents that have been identified by the Division in the claim-screening process as being necessary for considering the claim.
Record of the steps taken to obtain documents
The claimant should keep a record of the steps taken, such as copies of letters sent, to obtain identity and other necessary documents.
Presenting evidence on identity at the hearing of the claim
The claimant is required to establish his or her identity and other elements of the claim. The claimant should therefore be prepared to present evidence on the issue of identity at the beginning of the hearing, unless the Division has notified the claimant or counsel otherwise.
Explanation for lack of documents
The claimant who is unsuccessful in obtaining documents to establish his or her identity and other elements of the claim should be prepared to provide a reasonable explanation for the lack of documents and show that diligent efforts were made to obtain such documents and to present proof of the steps taken. The Division may instruct the claimant to make further efforts to obtain necessary documents.
Other independent evidence to establish identity
The claimant who lacks documents or whose documents are not found acceptable should be prepared to present other independent evidence to establish his or her identity or other elements of the claim, if such evidence is available. Such evidence may include:
- testimony of friends, relatives, community elders or other witnesses; and
- affidavits of individuals who have personal knowledge of the claimant's identity or other elements of the claim.
2.4.5.3. Background and Jurisprudence
While recognizing the difficulty that claimants often encounter in being able to furnish documentation to establish their claim,201 the UNHCR Handbook nonetheless places responsibility on claimants to provide evidence to support their claims and to attempt to obtain additional evidence if required. Thus a claimant should
205. ... (ii) Make an effort to support his statements by any available evidence and give a
satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence.
In 1997, the Immigration and Refugee Board issued a Commentary on Undocumented and Improperly Documented Claimants (IRB Legal Services, March 11, 1997), and an accompanying Practice Notice, to provide guidance to CRDD members as to how to deal with claimants who lacked proper documentation.202 These two documents are superseded by the provisions of IRPA and Rule 7, which are outlined above.
The Commentary on Undocumented and Improperly Documented Claimants received scant notice in the Federal Court. While the Commentary is no longer in effect, the one decision of the Federal Court that specifically refers to the accompanying Practice Notice and which reasoning is still relevant is Nardeep Singh.203 In that case the Court held:
The Board referred to a Practice Direction [Practice Notice on Undocumented and Improperly Documented Claimants] of March 11, 1997 in which counsel are notified that the Board may make adverse inferences where there is no reasonable explanation for a lack of documentary evidence or where there has been a lack of reasonable diligence in obtaining that kind of evidence.
It is true, generally speaking, that the Board may not discredit a claimant's testimony simply because of an absence of documentary evidence, particularly in situations where it would not be reasonable to expect the [claimant] to have it at his or her disposal: ... However, the Board did not reject Mr. Singh's testimony solely because of an absence of documentation. It did so because it he had had "ample opportunity to seek documentation in support of his claim" and because it did not accept his explanations for failing to produce that evidence. In the end, the Board concluded that there was insufficient evidence before it to support Mr. Singh's claim.
In subsequent decisions, the Federal Court noted that IRPAparticularly sections 100(4) and 106 and section 7 of the RPD Rulesplaces emphasis on identification,204 and that Federal Court judges have emphasized the importance of a person's identity.205
Section 7 of the RPD Rules was considered in the case of Amarapala,206 where the Court applied the principles enunciated in Nardeep Singh207 to that provision, which is broader in scope than section 106 of the Act.
Section 7 [of the RPD Rules] makes documentation a requirement not only for establishing identity, but also for other elements of the claim. However, a reasonable explanation for the failure to provide documents under section 7 means that corroboration documents are not always necessary. ...
In this case, the [claimant] provided documents about his father's and brother's involvement in the UNP [United National Party], and the Board reasonably expected documents would be produced about the [claimant's] involvement with the UNP. The failure to produce documents one would normally expect is a relevant consideration in assessing and rejecting the credibility of the [claimant]. [Emphasis added.]
The application of section 106 of IRPA and Rule 7 by the RPD has been upheld by the Federal Court in several cases.208 In those cases, the Board had requested the claimant to submit corroborating documents; the claimant was made aware of the Board's concerns as to the claimant's identity and/or the genuinenness of the documents submitted; the Board provided the claimant with an opportunity to address the Board's concerns about the documents submitted or the lack of documents; and the Board considered the claimant's explanation is assessing the credibility of the claimant.209 The Federal Court has held that the submission by the claimant of identity documents that were clearly not authentic could properly lead the panel to conclude that the claimant was not a trustworthy person. 210
The Federal Court has established the following principles relating to the issue of lack of identity documents. Most of this case law was decided under the previous Immigration Act, but is still relevant.
- The claimant has the fundamental obligation to establish his or her identity on a balance of probabilities.211 Thus, the claimant must come to a hearing with all of the evidence that he or she is able to offer and believes is necessary to prove the claim.212
- Where relevant, the claimant should be advised that identity is an issue, and of the need to provide specific documents or other corroborative evidence.213
- The panel should take into account in its decision any explanation given by the claimant for not providing documents or other corroborative evidence and the efforts made to obtain such evidence, and provide reasons for not accepting the explanations offered by the claimant to be reasonable.214
- What is "reasonable" ("reasonable explanation" or "reasonable steps") will depend on the circumstances of the case. For example, it may be unreasonable to expect a claimant to obtain documents abroad over which he or she has no control.215 It may be unreasonable, or even implausible, for a claimant not to have brought certain documents with him or her or not to have made efforts to obtain the corroborative evidence requested by the RPD.216 The panel is entitled to draw a negative inference where the claimant fails to provide documents that the claimant undertook to provide at the hearing.217
- The Federal Court of Appeal has held that the fact that a claimant has destroyed or disposed of false travel documents en route to Canada is not a satisfactory basis on which to challenge a claimant's credibility, as this a peripheral matter of limited value to determination of general credibility.218 However, more recent Trial Division decisions have held that the Board was correct in attaching importance to this matter.219 The destruction of genuine documents is a relevant consideration.220
- Even if the required documents or corroborative evidence are not provided, and the claimant does not offer a satisfactory reason for not doing so or make reasonable efforts to obtain them, the panel should still go on to assess the balance of the evidence, especially if it may corroborate the claimant's story.221
- A lack of relevant documents may lead to a finding that a claimant has not discharged the burden with respect to identity and other elements of the claim. This is often done in conjunction with a consideration of other factors relating to credibility.222 Where a claimant's story has been found to be implausible or otherwise lacking in credibility, a lack of documentary corroboration,223 or a lack of efforts to obtain the documentation,224 can be a valid consideration for purposes of assessing credibility. The circumstances in which a document is provided225 or the fact that the claimant provides documents selectively may be a basis for drawing an adverse credibility finding.226
The "unanimity provisions" found in paragraph 69.1(10.1)(a) of the Immigration Act,227 which changed the effect of a split decision by a two-member panel on the claim when identity documents were disposed of or destroyed without valid reason, are not part of IRPA. However, section 106 of IRPA allows the RPD to consider similar factors in applying that provision. Therefore, the Federal Court case law relating to the "unanimity provisions" discussed below is still relevant to the issue of whether the claimant provided a reasonable explanation for the lack of documents.
"Identity documents" include both genuine and false or fraudulent documents.228 The words "disposed of" connote intention or an act of will; they do not encompass victimization by theft, robbery, trickery or intimidation.229
2.4.6. Self-Serving Evidence
The Federal Court commented, in Kimbudi, that it is difficult to conceive what evidence would be available to a claimant in Canada that would not be self-serving.230 Thus the RPD should have a good reason to dismiss a claimant's evidence as being "self-serving".231 It would not constitute "clear reasons" for finding evidence not to be credible to simply refer to it as being "self-serving", without providing any further analysis.232
In Vallejo, the Federal Court held that the absence of "self-serving" evidence that is otherwise accorded little or no weight is "a flimsy basis for doubt."233
2.4.7. Preferring Documentary Evidence to the Claimant's Testimony
The Board is entitled to rely on documentary evidence in preference to the testimony provided by a claimant,234 even if it finds the claimant trustworthy and credible.235 However, RPD members must provide clear and sufficient reasons for accepting documentary evidence over the evidence of the claimant, especially when it is uncontradicted.236
The Federal Court has upheld, in a number of decisions, the Board's reliance on documentary evidence originating from a variety of reputable independent sources, none of which can be said to have any vested interest in the claim at hand (and are to that extent free of bias), in preference to the claimant's testimony.237
This does not necessarily apply to information obtained from an individual in response to a particular inquiry, as such evidence does not have the same "circumstantial guarantee of trustworthiness" as documentary evidence prepared by independent agencies that is published and circulated.238
2.4.8. Assessing Documents
The matter of foreign documents is not an area where the Board can claim particular knowledge.239 There is no general requirement for the RPD, however, to submit an identity or other document for forensic testing.240
Where there is sufficient evidence to cast doubt on its authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little (or no) weight, without expert verification or where such verification is inconclusive.241 When discounting documents in such circumstances, the Board should take into account the explanation, if any, given by the claimant.242
Where there is insufficient evidence to call into question the authenticity of a document it is not open to the Board to conclude it is not genuine.243 The Federal Court has held that documents issued by a foreign government are presumed to be authentic,244 unless evidence (external to the document) is produced to prove otherwise or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document into question.245
Evidence of widespread availability of fraudulent documents in a country is not, by itself, sufficient to reject foreign documents as forgeries,246 but may be relevant if there are other reasons to question the documents or a claimant's credibility.247
Where there is conflicting evidence, the RPD is entitled to choose the documentary evidence that it prefers, provided that it addresses the contradictory documents and explains its preference for the evidence on which it relies.248
A claimant's overall lack of credibility may affect the weight given to documentary evidence (including medical evidence), and in appropriate circumstances may allow the Board to discount that evidence.249 Conversely, submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the claimant (especially when they are interrelated),250 and on the overall credibility of a claimant.251 Not every discrepancy in a document, however, will necessarily be material to the success of a claim.252
If the Board wants to premise an adverse credibility finding on the fact that a claimant is lying about her age (or other condition), the relevant medical evidence must be disclosed to the claimant.253
2.4.9. Medical Reports
It is open to a panel to find that opinion evidence is only as valid as the truth of the facts on which that opinion is based. Therefore, if a panel does not believe the underlying facts, it may discount a medical report in light of that finding.254
While the Board may determine what weight, if any, to give to a psychological report, not being an expert tribunal in the area of psychological assessment it cannot reject a psychologist's diagnosis. In Zapata,255 the Federal Court stated:
The CRDD must give appropriate weight to professional opinion directly related to the [claimant] before it and to the documentary evidence that, read together with the professional opinion, is corroborative of the position of the [claimants] or, put another way, that reflects the impact of the case specific professional opinion.
The Court found, in that case, that a medical report cannot be rejected solely for the reason that the conclusion made therein is based on what was related to the doctor by the claimant, when it is clear from the report that the doctor's own professional observation of the claimant was material to the conclusion reached.256
The Federal Court has also held that, where a professional opinion as to the psychological state of the claimant and whether he was suffering from post-traumatic stress disorder is submitted, it cannot be rejected on the grounds that the doctor could not corroborate specifically the incidents related by the claimant.257
A medical report cannot be rejected for the sole reason that it does not indicate that the only possible cause of the injury in question is that related by the claimant. It is sufficient that the report finds that the injury in question is consistent with the cause specified by the claimant.258
Where a psychiatric report speaks to a medical condition that may impact on the claimant's behaviour or ability to provide coherent testimony, that factor should be considered by the Board when assessing the claimant's testimony.259 However, the RPD is not required to defer to the opinion of the author of the report, especially on matters such as the claimant's credibility260 which the panel must assess independently. The absence of a medical report that diagnoses an alleged cognitive difficulty may be considered by the Board in assessing a claim.261
Even if the Board considers a claimant not to be credible, it must still consider the documentary evidence. The need for the panel to refer, in its reasons, to medical and psychiatric reports filed in evidence will depend on the quality of that evidence and the extent to which it is central to the claim.262 Where the medical report is cogent and relevant to the panel's findings of non-credibility, and credibility is central to the outcome of the claim, the RPD is obliged to explain how it dealt with the report in the context of making its non-credibility finding.263
2.5. ALLOWING THE CLAIMANT TO CLARIFY CONTRADICTIONS OR INCONSISTENCIES IN THE TESTIMONY
2.5.1. General Principle
Generally speaking, there is no obligation on the tribunal to signal its conclusions on the general credibility of the evidence.264 In some cases, however, failure to examine a witness on some material part of his or her evidence has been treated as an acceptance of the truth of that part of the evidence.265
2.5.2. Confronting the Claimant with Contradictions or Inconsistencies Internal to the Claimant's Testimony
The Federal Court has held, in Gracielome and other cases, that the Board should afford the claimant (and any other witness) an opportunity to clarify the evidence and to explain apparent contradictions or inconsistencies within that person's testimony.266
The same principle applies to inconsistencies between the claimant's oral testimony and the Personal Information Form (PIF) or port of entry notes, as well as with respect to omissions therein.267
In a number of more recent decisions, the Federal CourtTrial Division has moved away from a rote application of this principle.268 In Tanase,269 the Trial Division interpreted Gracielome to stand for the proposition that,
where a claimant is not confronted by a panel with alleged contradictions or asked for explanations prior to a decision on credibility being made, the reasons for showing deference to the panel are severely diminished as it is no better position to weigh the contradictions than is the Court. This proposition does not imply, however, that the duty of fairness requires a panel to alert a claimant to a potentially adverse credibility finding in every case or in matters of trivial importance.
In Ngongo,270 the Federal CourtTrial Division set out a list of factors to consider in deciding whether the Board is required, in a particular case, to confront the claimant with contradictions in his or her testimony.
In my view, regard should be had in each case to the fact situation, the applicable legislation and the nature of the contradictions noted. The following factors may serve as guidelines:
- Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious?
- Was it in answer to a direct question from the panel?
- Was it an actual contradiction or just a slip?
- Was the [claimant] represented by counsel, in which case counsel could have questioned him on any contradiction?
- Was the [claimant] communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely.
- Is the panel's decision based on a single contradiction or on a number of contradictions or implausibilities?
In Veres,271 the Federal Court drew a further distinction for omissions in the evidence where the Board, as a time saving measure, proceeds directly to questioning by the Refugee Claim Officer (now Refugee Protection Officer) without having the claimants put their case orally in chief. In such cases, it is unfair to reproach the claimants for having failed to provide some piece of evidence unless they have noticed that they are at risk on the issue. The failure of counsel to object to the procedure chosen by the Board does not affect this result. The circumstances will dictate the extent to which the Board must ask specific questions.
As noted by the Court of Appeal in Owusu-Ansah, the Board cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding. Evidence provided by the claimant should be acknowledged in the reasons for decision and the RPD should explain why the evidence was rejected, if that is the case.272 The explanation provided by the claimant must have been unreasonable or otherwise unsatisfactory to reject the claimant's testimony on the basis of credibility.273
2.5.3. Confronting the Claimant Where the Testimony is Vague
With respect to a lack of detail in the claimant's account, in Danquah,274 the Federal Court stated:
Nor am I persuaded that the tribunal was unfair in its process in not alerting the [claimant] at the time of her hearing, of its concerns about the weakness of detail in her testimony about these matters. There was no instance of inconsistency in the [claimant's] evidence relied upon by the tribunal, which it ought in fairness to have brought to the attention of the claimant. A hearing tribunal has no obligation to point to aspects of the [claimant's] evidence that it finds unconvincing where the onus is on the [claimant] to establish a well-founded fear of persecution for reasons related to Convention refugee grounds.
Similarly, in Kutuk,275 the Federal Court held that the Board is not obliged to confront a claimant with the vagueness of his or her evidence.
2.5.4. Confronting the Claimant with Documentary Evidence
The Court of Appeal stated in Zhou that
There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. 276
In Osei,277 where the credibility concern was not related to contradictions or inconsistencies internal to the claimant's testimony, but rather to an assessment of the claim in light of the documentary evidence concerning country conditions, the Federal Court stated:
I do not think [the Tribunal] was required to inform the [claimant], before finally rendering its decision, that it doubted the existence of the D.M.L.G. and give the [claimant] an opportunity to respond to that conclusion. I think that this is a different kind of situation from conflicting evidence coming out of the [claimant's] own mouth. In the latter situation, the Tribunal is expected generally to confront the [claimant] with the contradictions.
The Federal Court arrived at a similar conclusion in other cases.278
However, where personal or other claimant-specific documents are in issue, the Federal Court has taken diverse approaches and has often required that the claimant be afforded an opportunity to explain concerns raised by the Board.279
Where additional documentary evidence is sought or submitted after the hearing has concluded and while the decision is under reserve, the RPD should generally provide the claimant an opportunity to comment on that evidence. Where the evidence goes to a matter that is central to the claim, absent a proper waiver or express consent, the RPD should reconvene the hearing for that purpose before making a negative finding of credibility.280
2.5.5. Confronting the Claimant Where There Are Implausibilities
Generally speaking, there is no obligation on the Board to put its concerns with respect to plausibility to the claimant. The Federal Court has held that the Board is under no obligation to alert the claimant of its concerns about weaknesses of testimony giving rise to implausibilities,281 unless perhaps the incosistency is at the heart of the claim.282
However, the Federal Court stated in Nkrumah283 that
where the panel's inferences are based on what seem to be "common sense" or rational perceptions about how a governmental regime in another country might be expected to act or react in a given set of circumstances, there is an obligation, out of fairness, to provide an opportunity for the [claimant] to address those inferences on which the panel relies.
Some decisions of the Federal Court also hold that the claimant should have been afforded an opportunity to explain why the claimant or others behaved in a particular way.284
In Arumugam,285 the Federal Court attempted to reconcile these divergent lines of authority when it stated:
Board's [sic] cannot simply draw implausibilities "out of a hat". They must be founded on the evidence. If they are clearly highly speculative and a claimant has not been given an opportunity to address them, a reviewing Court will give the conclusion little weight. If they are firmly founded in and supported by the evidence they of course will be given greater weight.
2.6. TAKING THE CHARACTERISTICS OF THE PROCESS INTO ACCOUNT
2.6.1. Hearing Procedures
The refugee determination process is one that is not like most other judicial processes in our legal system. It is specifically designed to be expeditious, informal, non-adversarial and investigative in nature. The "normal" rules of evidence do not apply and it may involve the use of the Board members' "specialized knowledge". Almost all of the oral evidence is received through the filter of interpreters. The end result of all of these "unusual" characteristics is that the process is fraught with the possibility of misunderstanding, even among people acting in good faith.286
2.6.2. Special Circumstances of the Claimant
The following factors or circumstances may influence the claimant's ability to observe and recall events in the course of a hearing: nervousness caused by testifying before a tribunal287; the claimant's psychological condition (such as post-traumatic stress disorder) associated with traumas such as detention or torture288; the claimant's young age;289 cognitive difficulties and the passage of time;290 gender considerations;291 the claimant's educational background292and social position;293 and cultural factors.294 The RPD must therefore take into account all of these "unusual" characteristics when assessing the credibility of the claimant's or a witness's evidence.
2.6.3. Assessing the Evidence
The Federal Court has cautioned Board members not to display excessive zeal in an attempt to find contradictions in the claimant's testimony.295 In Attakora, the Court of Appeal recognized that, while members have a difficult task when assessing credibility, the Board "should not be over-vigilant in its microscopic examination of persons who...testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe."296
In Mensah, the Federal Court made it clear that it is important that the claimant not be placed in a "Catch 22" situation by finding that the claimant is not credible if either too many details or not enough details are provided.297
In order to avoid factual errors (caused by delay) and the questioning of credibility decisions by the Court for this reason, in Sasan, the Federal Court cautioned the Board to ensure that its decisions are issued in a timely manner.298
2.6.4. Questioning by the Board Member and Refugee Protection Officer
RPD members may ask questions in order to clarify the evidence, to request explanations of the claimant, and to disclose their concerns, thus giving the claimant an opportunity to respond to those concerns.299
RPD members have a duty to get at the truth concerning the claims they hear.300 Thus, extensive and even "energetic" questioning of the claimant by the members, especially in the absence of a Refugee Protection Officer, can be proper and does not constitute grounds for a finding of a reasonable apprehension of bias.301 Members must, however, remain objective, dispassionate and impartial,302 and not subject the claimant to constant interruptions, animosity or offensive remarks.303
In Yusuf,304 the Court of Appeal reaffirmed the following principles:
- Board members have the right to cross-examine the witnesses they hear but there are limits (p. 683);
- Interruptions during examination-in-chief for purposes of clarifying the answers given are permissible (p. 633);
- The tone and content of questions must be judicious (p. 633);
- Harassing comments to the witnesses and unfair questions to a witness are not acceptable; this type of cross-examination would not be permitted in an adversarial proceeding (p. 636).
What is permissible behaviour, including the scope and manner of questioning by a Board member, depends on the particular facts of each case.305 Thus, there may be circumstances where the questioning is excessive or overly aggressive or the interventions are improper (for example, making inappropriate comments or demonstrating an unfavourable attitude).306
Sometimes, rather than clarifying, questioning by Board members has resulted in considerable confusion.307 Such interventions may give rise to an apprehension of bias on the part of the tribunal and to a breach of natural justice.
Refugee Protection Officers have the right to question (cross-examine) the claimant308 and may, if directed by the RPD, question the claimant first.309 Their questioning must not, however, overstep the bounds of what is appropriate cross-examination.310 Refugee Protection Officers are entitled to make submissions on the merits of the claim and to alert the Board as to issues of credibility.311
The Chairperson's Guideline Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division312 provides:
19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
The Guideline also addresses the order of questioning in other situations (where the Minister intervenes on an issue other than exclusion; where the Minister intervenes on the issue of exclusion; in an application to vacate or cease refugee protection), and allows the Member to vary the order of questioning in exceptional circumstances. These provisions are effective (mandatory) as of June 1, 2004, but a change in the order of questioning can be implemented as of December 1, 2003 with the consent of the parties.
While it is permissible in certain circumstances for RPD members to do their own research into the facts of a case,313 a member should not secretly initiate a search for evidence which it then intends to use as a basis for questioning the claimant.314
Alleged breaches of natural justice, such as an apprehension of bias arising out of improper questioning or conduct by a Member or RPO, should be raised at the earliest practicable opportunity, that is generally before the Member at the RPD hearing.315
2.6.5. The Filter of an Interpreter
The Federal Court has addressed the point that Board members must take into account the fact that the claimant is heard and questioned through an interpreter and that innocent misunderstandings are possible.316
Therefore caution should be exercised especially when comparing statements made by a claimant while testifying on different occasions through different interpreters. The same considerations apply to a PIF completed by a claimant with poor language skills.317
Board members must ensure that the interpreter is competent and provides a complete and accurate rendering of the testimony.318 Members have the responsibility to ensure that any interpretation or communication problems that arise at the hearing are addressed and cleared up.319
3. A FINDING OF "NO CREDIBLE BASIS"
3.1 Overview
The "no credible basis" provision is used where RPD members determine not only that the evidence adduced is insufficient to establish the claim, but also that there is no credible or trustworthy evidence on which the claim could have been accepted.320
In Rahaman,321 the Court of Appeal rejected the argument that the "no credible basis" provision should be interpreted to include only claims that are manifestly unfounded or clearly abusive. The following are examples of when determinations of "no credible basis" are more likely to be made:
- where the claim is frivolous or where fraud or misrepresentation is involved in the claim;
- where the claimant is completely lacking in credibility; and
- in certain circumstances, where the claimant has not adduced any credible evidence with respect to a required element of the Convention refugee definition (for example, nexus to a Convention ground).
3.2. Legislation
The substance of the "no credible basis" provision in subsection 69.1(9.1) of the Immigration Act has not changed with the implementation of IRPA. Subsection 107(2) of IRPA reads:
107. (2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.
Previously, subsection 69.1(9.1) of the Immigration Act provided:
69.1 (9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.
3.3. Notice to the Claimant Not Required
The Court of Appeal has held that the Board is not required to give the claimant any special notice before it finds that there was "no credible basis" for the claim.322 The Court noted that there is no express requirement in the legislation that such a notice be given. Furthermore, a claimant is or should be aware of the risk of a "no credible basis" finding even without any additional notice, as a claimant cannot establish a claim without first establishing a credible basis for that claim. Thus all of the available evidence should already have been placed before the panel as part of the claim.
3.4. Application of the Provision
In order for this provision to apply, a member of the RPD323 must find that:
- the claimant is not a Convention refugee or a person in need of protection; and
- there was no credible or trustworthy evidence on which the claimant could have been determined to be a Convention refugee or a person in need of protection.
It appears that a "no credible basis" finding may be made where the Board's decision is based mostly on documentary evidence and not strictly on the claimant's personal credibility.324 The Federal Court has also upheld decisions where the "no credible basis" finding was based on a lack of nexus to a Convention ground,325 a lack of subjective fear,326 or a finding of non-credibility with respect to the claimant's identity.327
Some Federal Court decisions, relying on Baker328 and given the serious consequences of the decision, require the Board to give separate reasons for finding "no credible basis".329
Other Federal Court have held that the "no credible basis" provision does not require a separate determination on the matter of lack of credible basis and, thus, no separate reasons for that conclusion are required. It is sufficient that the reasons support both the conclusions on the claim and those pertaining to the lack of credible basis.330
In Kanvathipillai,331 Justice Pelletier concluded that adherence to the test set out by the Court of Appeal in Rahanam (discussed below), as to the basis upon which the Board may make a finding of "no credible basis", will obviate the need for distinct reasons justifying such a finding. In Kouril,332 the Court distinguished Kanvathipillai on the basis that the Board had found the claimant's testimony not to be credible before concluding there was no credible basis for the claim.
3.5 Interrelation between "Credibility" and "Credible Evidence"
Considerable caution should be exercised when assessing whether there is no credible or trustworthy evidence. The fact that a panel finds a claimant's testimony not to be credible does not in itself bring the "no credible basis" provision into play.333 While the concepts of "credibility" and "credible evidence" are interrelated, and a general finding of lack of credibility can be the basis for the application of that provision,334 they are not identical concepts.
This matter was clarified in Rahaman,335 where the Court of Appeal held that where the only evidence linking the claimant to the persecution emanates from his or her testimony, rejecting the testimony means there is no longer a link to the persecution, and it then becomes impossible to establish a link between the person's claim and the documentary evidence. However, where there is relevant evidence emanating from sources other than the claimant's testimony which can link his claim to the ongoing persecution of individuals in his or her country, clear and definite rejection of this evidence is required to support the panel's conclusion of "no credible basis".
[16] Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) contains the most authoritative exposition of the "no credible basis" test when it performed the function of screening out claims at the preliminary stage of the determination process. Writing for the Court, MacGuigan J.A. concluded (at page 244) that Parliament had intended subsection 46.01(6) [of the Immigration Act] to screen out more than clearly "bogus claims":
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
I would add that in my view, even without disbelieving every word an applicant has uttered, a first‑level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second‑level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first‑level panel's conclusion that there is no credible basis for any element of his claim is sufficient.
[17] Subsequently, the phrase "no credible basis" as it appears in subsection 69.1(9.1) [of the Immigration Act] has been interpreted in accordance with Sheikh, supra. Thus, in Mathiyabaranam v. Canada (Minister of Citizenship and Immigration) (1997), 41 Imm. L.R. (2d) 197, at paragraph 12 (F.C.A.), Linden J.A. cited Sheikh, supra, for the proposition that, "[w]hile credible basis and credibility are not identical, they are clearly connected". At the very least, Mathiyabaranam, supra, is an implicit endorsement of the applicability of Sheikh, supra, in the context of subsection 69.1(9.1).
[18] Judges of the Trial Division have expressly held that Sheikh, supra, is the applicable approach to the words "no credible basis" in subsection 69.1(9.1)...
[19] Some Judges have noted, however, that because of the change in statutory context Sheikh, supra, should not be read broadly so as to relieve the Board of the duty to base a "no credible basis" finding on the totality of the evidence before it. This caution was well articulated in Foyet v. Canada (Minister of Citizenship and Immigration)336 (2000), 187 F.T.R. 181... In this case (at paragraph 19), Denault J. summarized his understanding of the law as follows:
In my view, what Sheikh, tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding.
In my view, this is an accurate statement of the law as it has been understood to date, subject to one qualification: in order to preclude a "no credible basis" finding, the "independent and credible documentary evidence" to which Denault J. refers must have been capable of supporting a positive determination of the refugee claim.
[20] The case law to date would therefore seem to be solidly against the position taken on behalf of Mr. Rahaman in this appeal, namely that the Board may not make a "no credible basis" finding if a claim is based on a Convention ground and there is evidence that persecution of the kind alleged has in fact occurred in the country in question.
The Court of Appeal further held:
[51] ...the Board should not routinely state that a claim has "no credible basis" whenever it concludes that the claimant is not a credible witness. ...subsection 69.1(9.1) requires the Board to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim.
[53] ... Accordingly, I would dismiss the appeal and answer the certified question as follows:
Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on the assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis.
3.6. Consequences of a Finding of "No Credible Basis"
There are serious consequences for the claimant if the RPD determines that there is "no credible basis" for the claim. A claimant whose claim is rejected by the RPD is ordinarily entitled to stay in Canada pending the outcome of a review of that decision by the Federal Court or the Supreme Court of Canada.
However, when the RPD states in its decision, in accordance with subsection 107(2) of IRPA, that there is no credible basis for the claim, the claimant is not automatically entitled to that stay of removal. Therefore, the claimant could be removed from Canada 15 days after notification that the claim has been rejected by the RPD, unless the Court grants a judicial stay on a case-by-case basis.337
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